HomeMy WebLinkAboutOrdinance No. 11-O14ORDINANCE NO. 11-014
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AZUSA APPROVING A DEVELOPMENT AGREEMENT FOR
THE CONSTRUCTION AND OPERATION OF A MATERIAL
RECOVERY FACILITY AND TRANSFER STATION,
LOCATED AT 1501 W. GLADSTONE STREET
WHEREAS, in February 2009, Waste Management submitted an application for a
proposed Material Recovery Facility and Transfer Station ("MRF/TS") for receiving and
sorting municipal solid waste, recyclables, and green landscaping waste; and
WHEREAS, the Development Agreement is part of a package of entitlements, as
approval of the MRF/TS requires a number of City actions and entitlements, including
approval of a Zone Change and General.Plan Amendment, a Zoning Code Amendment,
various use permits, several variances, and the Development Agreement; and
WHEREAS, the Development Agreement will secure benefits to the City,
including a host fee of $1.60 per ton for all waste material delivered to the station,
processed, and transferred out; and
WHEREAS, the Planning Commission of the City of Azusa, after giving notice
thereof as required by law, held a series of public meetings and public hearings on the
application of Waste Management with respect to the requested Development
Agreement, at which time all persons wishing to testify in connection with the
Development Agreement were heard and the revision was fully studied, discussed and
deliberated; and
WHEREAS, the Planning Commission, upon carefully considering all pertinent
testimony and the staff report offered in the case as presented at the public hearing, voted
to recommend that the City Council approve the Development Agreement; and
WHEREAS, the City Council of the City of Azusa, after giving notice thereof as
required by law, held a public hearing on the application of Waste Management to
approve the Development Agreement; and
WHEREAS, the City Council, after carefully considering all pertinent testimony
and the staff report offered in the case as presented at the public hearing, now wishes to
approve the Development Agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1: The above Recitals are true and correct and are incorporated herein
by this reference.
SECTION 2: Pursuant to, and in compliance with, the California Environmental
Quality Act ("CEQA") (Public Resources Code section 21000 et seq.), a Final
Environmental Impact Report has been submitted for concurrent review and certification.
In accordance with the Final Environmental Impact Report and resolution for
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certification of the same submitted concurrently herewith, with the proposed mitigation
measures, the proposed project would have significant and unavoidable impacts related to
traffic and air quality, which have been considered acceptable by the City Council in
accordance with the adoption of a statement of overriding considerations.
SECTION 3: That in accordance with Section 88.53.030 of the Azusa
Development Code, the City Council hereby approves the proposed Development
Agreement based on the following findings:
A. That the proposed Development Agreement is consistent with the goals,
policies, and objectives of the General Plan.
The proposed Development Agreement is consistent with General Plan
Chapter 4: Economy and Community Goal 1: "Build and maintain a
strong, diverse economy in Azusa," and Goal 9: "Create a diverse and
balanced revenue base with long-term value, avoiding excess reliance on a
single revenue resource." The project will add a new and different
revenue stream to the economy of Azusa. It will also provide a long-term
revenue stream that will enhance Azusa's economic health and quality of
life.
The proposed Development Agreement is also consistent with General
Plan Chapter 4: Economy and Community Goal 4: "Support the creation
of high-quality jobs for relatively low skill levels." The MRF/Transfer
Station will create approximately 62 new jobs of varying skill levels. The
proposed project is also consistent with the General Plan as illustrated in
the table below.
General Plan Policies
Project Consistency
LU
Land Use (LU)
LU4.8
Accommodate industrial,
Consistent. The project proposes an
manufacturing and supporting
industrial development (i.e., the MRF/TS)
commercial use within the West End
within the District.
Industrial District and in accordance
with Table CD -2, Land Use
Classifications.
LU4.9
Require buildings within the West End
Consistent. Pursuant to Azusa
Industrial District to be uniquely
Development Code Section 88.51.032,
identifiable, distinguished in their
Design Review, the proposed project
architecture and site planning, and
would be subject to Design Review, in
compatible with adjacent uses and
order to ensure that the proposed uses and
districts.
structures enhance their sites with the
highest standards of improvement and are
compatible with the surrounding land
uses. Namely, the industrial uses located
to the north, east, and west in the City of
Azusa, and the industrial uses located to
the south in the City of Irwindale. Design
Review would also ensure that the
proposed development complies with all
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45635.01817\6053448.1
applicable Azusa Development Code
standards and regulations, and Azusa
General Plan Policies, and does not
adversely affect community health, safety,
aesthetics, or natural resources.
Additionally, it is noted land use
compatibility impacts associated with land
development involve quality of life issues,
including aesthetics, traffic, and noise,
among others. While these may generally
be perceived as subjective issues, the
significance criteria detailed in each of the
respective EIR issues sections provides a
basis for assessing land use compatibility
impacts. Quality of life issues are
analyzed in EIR Section 5.2,
Aesthetics/Light and Glare, Section 5.3,
Traffic and Circulation, and Section 5.6,
Noise. Further, the project would involve
Use Permits and Variances, subjecting the
proposed development to further
discretionary review by the City Staff,
Planning Commission, and City Council,
which would also minimize land use
compatibility issues.
LU4.10
In the West End Industrial District,
Consistent. The project proposes to retain
establish and require new
the existing sidewalks located along
developments to provide pedestrian
Irwindale Avenue and proposes a curb,
and landscape linkages to other areas
gutter, and sidewalk along Gladstone
and businesses within the district and
Street, which are considered sufficient
to the Foothill Boulevard corridor, as
linkages with the District's other
appropriate.
businesses, given the industrial nature of
the surrounding area. The project also
proposes landscaping along Gladstone
Street and Irwindale Avenue, as depicted
on the Preliminary Landscaping Plan.
LU6.1
Accommodate industrial development
Consistent. The project proposes an
in accordance with Table CD -2, Land
industrial development (i.e., the MRF/TS)
Use Classifications (Industrial).
within the District.
LU6.2
Require all industrial buildings to be
Consistent. Refer to Response to Policy
distinctive, constructed of high quality
4.9 above and EIR Section 5.2,
materials, and be of interesting and
Aesthetics/Light and Glare.
strong design. All buildings shall be
visually attractive from the street, and
from adjacent or nearby properties.
LU6.3
Require rooflines and building
Consistent. Refer to Response to Policy
elevations to be visually attractive
4.9 above and EIR Section 5.2,
from all vantage points.
Aesthetics/Light and Glare.
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LU6.4
LU10.1
LU10.2
Require site development plans to:
• Incorporate physical and visual
design elements that buffer
industrial use from any nearby
residential neighborhood or use;
• Provide elements that link
commercial and industrial uses
(sidewalks and paths, common
architectural design, signage,
landscape, etc.); and
• Require single level, "at grade"
parking facilities to be generously
landscaped with shrubs and trees.
Require the consideration and
mitigation of noise, light, vehicular,
and other impacts on residential
properties in the design of commercial
and industrial development.
Require on-site lighting of
institutional, commercial, and
industrial uses be constructed or
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Consistent.
The project proposes a decorative
perimeter security wall and landscaping
(along Gladstone Street and Irwindale
Avenue) that would buffer the proposed
development. Also, the MRF/TS would
involve entirely indoor collection and
processing of recyclable materials. There
are no residential neighborhoods located
nearby. The nearest residential uses are
the City's southeast neighborhoods east of
Jackson Avenue.
Consistent. The project proposes to retain
the existing sidewalks located along
Irwindale Avenue and proposes a curb,
gutter, and sidewalk along Gladstone
Street, which are considered sufficient
linkages with the District's other
businesses, given the industrial nature of
the surrounding area. The project also
proposes landscaping along Gladstone
Street and Irwindale Avenue, as depicted
on the Preliminary Landscaping Plan.
Consistent. The project proposes to retain
the existing sidewalks located along
Irwindale Avenue and proposes a curb,
gutter, and sidewalk along Gladstone
Street, which are considered sufficient
linkages with the District's other
businesses, given the industrial nature of
the surrounding area. The project also
proposes landscaping along Gladstone
Street and Irwindale Avenue, as depicted
on the Preliminary Landscaping Plan.
Consistent. There are no residential
properties located nearby. The nearest
residential uses are the City's southeast
neighborhoods located east of Jackson
Avenue. As discussed in EIR Sections 5.1
through 5.11 of the EIR, mitigation
measures are recommended, in
consideration of the project's
environmental impacts. More specifically,
refer to EIR Section 5.6, Noise, Section
5_2, Aesthetics/Light and Glare, and
Section 5.3, Traffic/Circulation, for
discussions regarding the project's noise,
light, and vehicular impacts, respectively.
Consistent. The project proposes on-site
lighting, as depicted on the Conceptual
Site Lighting Plan. Also, as concluded in
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located so that only the intended area
EIR Section 5.2, Aesthetics/Light and
is illuminated, off-site glare is
Glare, project implementation would
minimized, and adequate safety is
result in less than significant impacts
provided.
involving light and glare.
LU 10.7
Control the development of industrial
Consistent. Mitigation measures are
and other uses that use, store, produce,
recommended, in order to mitigate the
or transport toxins, generate
project's impacts involving hazardous
unacceptable levels of noise, air
materials, noise, air quality, and water
emissions, or contribute other
quality; refer to EIR Section 5.4, Air
pollutants requiring adequate
Ouali , Section 5:6, Noise, Section 5.9,
mitigation measures confirmed by
Hazards and Hazardous Materials, and
Section 5.10, Hydrolozy and Water
environmental review and monitoring.
Quality, respectively.
LU11.1
Require all structures to be constructed
Consistent. The project's building and
in accordance with City building and
engineering plans will be reviewed by the
other pertinent codes and regulations,
Azusa Building Division, in order to
including all new, adaptively re -used,
ensure consistency with Azusa Municipal
and renovated buildings; allowing
Code Chapter 14, Buildings and Building
appropriate exceptions for historically-
Regulations. Chapter 14 includes the
significant buildings.
Building Codes, Electrical Code,
Mechanical Code, and Plumbing Code,
among others. Approval of all project
plans would be required, prior to issuance
of any building, plumbing, electrical, or
mechanical permit.
LU 11.3
Require all developments including
Consistent. The project is subject to
renovations and adaptive reuse of
Development Review, in order to ensure
existing structures (except historically
that the proposed development complies
significant buildings) be designed to
with all applicable Azusa Development
provide adequate space for access,
Code standards and regulations, and
parking, supporting functions, open
Azusa General Plan Policies. Further, the
space, and other pertinent elements.
project would include Use Permits and
Variances, subjecting the proposed
development to further discretionary
review by the City Staff, Planning
Commission, and City Council, in order to
ensure the adequacy of the various project
elements.
OF
Urban Form
UF4.2
Encourage attractive gateway
Consistent. The proposed project will
treatments to establish a positive image
revitalize the southwest entrance into the
at the edges of the City and its districts
City via Irwindale Avenue, enhancing the
and corridors.
gateway to the industrial district of Azusa.
EC
I Economy and Community
EC1
Build and maintain a strong, diverse
economy in Azusa.
Consistent. The addition of the MRF/TS
business in the City of Azusa will provide
additional revenue to enhance the quality
of life for Azusa residents.
EC4.1
Support the creation of high-quality
Consistent. The MRF/TS will create
jobs for relatively low skill levels.
approximately 62 new jobs, of various
skill levels.
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EC9 Create a diverse and balanced revenue Consistent. The project will provide a
base with long-term value, avoiding revenue stream that will enhance Azusa's
excess reliance on a single revenue economic health and quality of life.
resource.
N Noise Goals and Policies
N1 Maintain community noise levels that Consistent. The project will meet the
meet guidelines and allow for a high noise standards of the Industrial and
quality of life Residential zones in the City of Azusa.
SECTION 4: Based on the Staff Report, all written and oral comments and
testimony presented to the City Council, and the aforementioned findings, the City .
Council does hereby approve the Development Agreement, attached hereto as Exhibit A.
SECTION 5: If any section, subsection, sentence, clause, phrase, or portion of
this Ordinance is for any reason deemed or held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect the validity
of the remaining portions of this Ordinance. The City Council of the City of Azusa
hereby declares that they would have passed each section, subsection, subdivision,
paragraph, sentence, clause, or phrase thereof, irrespective of the fact that any one or
more section, subsection, subdivision, paragraph, sentence, clause, or phrase would be
declared invalid, unconstitutional, or unenforceable.
SECTION 6: This Ordinance shall become effective thirty (30) days after its
adoption.
SECTION 7: A summary of this ordinance shall be published in the manner
required by law.
SECTION 8: The City Clerk shall certify to the adoption of this Ordinance.
PASSED, APPROVED AND ADOPTED this 18th day of July 2011.
OSEPH R. ROCHA, MAYOR
CITY OF AZUSA
ATTEST:
VERA MENDOZA, CITY
CITY OF AZUSA
45635.01817\6053448.1
I Vera Mendoza, City Clerk of the City of Azusa hereby certify that the foregoing
Ordinance No 11-014, as duly introduced and placed upon its first reading at a regular
meeting of the City Council of the City of Azusa held.on the 5 t day of July 2011, and
that thereafter, said Ordinance was duly adopted and passed at a regular meeting of July
18, 2011, by the following vote of the Council:
AYES: COUNCIL MEMBERS: GONZALES, CARRILLO, MACIAS, HANKS, ROCHA
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
CITY OF AZUSA
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
4mt�' g- G �
CITY ATTORNEY
45635.01817\6053448.1
EXHIBIT A
DEVELOPMENT AGREEMENT
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Azusa
Attn: City Clerk
213 E. Foothill Blvd.
Azusa, CA 91702-1295
Exempt from Recording Fee per
GovernmentCode&27383
(Space above for Recorder's Use)
TRANSFER STATION OPERATING AND DEVELOPMENT
AGREEMENT
between
CITY OF AZUSA
a California municipal corporation
and
AZUSA LAND RECLAMATION INC.
a California corporation
45635.01817\5878572.8 1
TRANSFER STATION OPERATING AGREEMENT
This Transfer Station Operating Agreement ("Agreement") is entered on
July 18, 2011 (Commencement Date), by and between the CITY OF AZUSA and
AZUSA LAND RECLAMATION INC. a Waste Management Company ("WM").
CITY and WM are sometimes individually referred to as "Party" and collectively
as "Parties."
RECITALS
WHEREAS, the City of Azusa is a California municipal corporation; and
WHEREAS, AZUSA LAND RECLAMATION INC. ("~') is a California
Corporation; and
WHEREAS, WM has applied to CITY for various land use entitlements
(Approvals) necessary to construct and operate a Solid Waste Transfer Station
Materials Recovery Facility, Green Waste Processing Facility, Household Hazard
Waste Collection Facility, a parking area and ancillary Facilities Station
(collectively, Transfer Station) at 1501 Gladstone Street, Azusa, CA) (the
Property); and
WHEREAS, in consideration' of obtaining such Approvals from CITY and
obtaining electricity at the rate set forth here in, and in order to offset impacts on
CITY in accordance with certain conditions imposed on the Conditional Use
Permit which is a part of the Approvals, WM has agreed to pay a certain amount
of money based on the number of tons of materials received of at the Transfer
Station and to provide other consideration, as set forth in this Agreement;
NOW, THEREFORE, in consideration of the covenants, promises, and
agreements hereinafter set forth, CITY and WM do mutually agree as follows:
1. PURPOSE OF AGREEMENT
The purpose of this Agreement is to create certain obligations between the
parties and their successor(s), including an obligation of WM to pay CITY a fee
based upon the number of tons of materials received at the Transfer Station for
so long as the Transfer Station is in operation.
2. LAND USE APPROVALS
WM's obligations under this Agreement shall not become enforceable until
CITY has issued all Approvals necessary for WM to operate a Transfer Station
on the Property.
45635.0181715878572.8 2
3. WASTE MANAGEMENT'S PAYMENT OF FEE
Upon final issuance of the Approvals and upon the date that WM first
begins to accept waste materials at the Transfer Station, WM shall pay CITY a
fee as follows:
Beginning on the Operation Date and continuing or a period of
three (3) lull calendar years thereafter, WM shall pay a fee of One Dollar and
Sixty Cents ($1.60) per ton for all material delivered to the Transfer Station. For
purposes of this Agreement, the Operation Date shall be that date upon which
WM begins to accept waste materials at the Transfer Station for processing.
At the end of third year of operation and beginning on the first day of the
fourth year of operation, WM shall pay a fee of One Dollar and Sixty Cents
($1.60) per ton for all materials received at the Transfer Station where such
materials represents between zero (0) and seventy five percent (75%) of the
daily permitted capacity as determined based on the maximum number of tons ,.
for which the Transfer Station is licensed to accept on each operating day and a
fee of Two Dollars ($2.00) per ton for all materials received at the Transfer
Station where such material represents between seventy six percent (76%) and
one hundred percent (100%) of the daily permitted capacity. The calculation of
the fee under this paragraph will be made on a daily basis.
The fee, amounts set forth immediately above shall be adjusted beginning
on the first. day of the sixth year of operation and on the first day of each
subsequent year of operation, to reflect changes in the Consumer Free Index of
the Bureau of Labor Statistics of the U.S. Department of Labor for All Urban
Consumers, (CPI — U) for The Los Angeles, Riverside -Orange CA — All Items, for
the most recent twelve month period immediately preceding the date of the
adjustment..
4. TIMING OF PAYMENTS
Payment shall be made by WM to CITY on a quarterly basis, within forty-
five (45) days from the end of each calendar quarter.
5. ELECTRICITY RATES
For the first five (5) years following the Operation Date, CITY shall provide
WM with electric utility services to operate the Transfer Station and the rates
charged for such utility service shall be at a discount of fifteen percent (15%)
below the current commercial rates in accordance with the City of Azusa's written
policies concerning the Utilities Economic Development program.
6. RECORDS
WM shall keep books and records relating to the tonnage of waste
transferred at the Transfer Station, in a satisfactory form and content consistent
4563 5.01817\5878572.8 3
with generally accepted accounting practices, and permit review, verification, and
audit by CITY when requested.
7. DAY LABORER SITE
WM shall at its sole cost and expense cause the day laborer employment
site located at 1501 W. Gladstone Avenue, Azusa to be relocated to a nearby
location within the City of Azusa. The relocated day laborer employment center
shall have all of the following improvements including: restrooms, tables,
benches, shade structures and drinking water.
In lieu of relocating the day laborer site, at the City of Azusa's sole
discretion, WM shall pay the City of Azusa a one time payment of $200,000.00
Upon payment WM shall have no further obligations with respect to the site.
E�Ki]��il1�m►["",J 2111211111
WM shall -develop the Transfer Station, and shall operate and maintain the
Transfer Station in accordance with sound operating practices and shall receive
and process waste and segregate and produce recycled materials in accordance
with all applicable federal, state, and local laws and regulations, including,
without limitation, all environmental laws and regulations, and the Transfer
Station's APPROVAL conditions, including conditions and regulations for load
checking program requirements. It shall operate the Transfer Station with
sufficient trained staff and shall develop and maintain safety, hazardous waste
exclusion, and other programs, rules and standards consistent with sound
operating practice for similar facilities.
WM warrants that it will comply with all applicable laws and regulations, as
they, from time to time, may be amended, specifically including, but not limited to
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901,
Comprehensive Environmental Response, Compensation and Liability Act 42
U.S.C. §§ 9601 ("CERCLA"), the California Integrated Waste Management Act of
1989, codified in part at Public Resources Code §§ 40000 et. seq., ("AB 939"),
the Carpenter -Presley -Tanner Hazardous Substance Account Act, codified at
California Health & Safety Code §§ 25300 et seq ("HSSA"), Cal Recycle
requirements and all other applicable laws and regulations of the United States,
the State of California, the County of Los Angeles, the rules of the Air Quality
Management District applicable to operators of refuse transfer facilities and
material recovery facilities and operators of fleets of refuse transfer vehicles, as
such rules may be adopted or amended during the term of this Agreement,
ordinances of the CITY and the requirements of local enforcement agencies and
all other agencies with jurisdiction. WM shall at all times during the period of this
Agreement, operate its fleet of refuse transfer trucks, if any, in full compliance
with all applicable rules and regulations.
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9. INSURANCE AND INDEMNIFICATION
A. Indemnification,
1. WM shall indemnify, defend, protect and hold harmless CITY, its
elected officials, officers, employees, volunteers; agents, assigns and any
successor or successors to City's interest from and against all claims, actual
damages (including but not limited to special and consequential damages),
natural resources damages, punitive damages, injuries, costs, response,
remediation and removal costs, losses, demands, debts, liens, liabilities, causes
of action, suits, legal or administrative proceedings, interest, fines, charges,
penalties and expenses (including but not limited to attorney and expert witness
fees and costs incurred in connection with defending against any of the foregoing
or in enforcing this indemnity) of any kind whatsoever (collectively, "Claims")
paid, incurred or suffered by, or asserted against, CITY or its elected officials,
officers, employees, volunteers or agents arising from or attributable to this
Agreement, or arising from or attributable to any repair, cleanup or detoxification,
or preparation and implementation of any removal, remedial, response, closure
or other plan (regardless of whether undertaken due to governmental action)
concerning any hazardous waste received at the Transfer Station which is or has
been transported, transferred, processed, stored, or disposed of by WM, or
arising from or relating to WM's activities pursuant to this Agreement which result
in a release of a hazardous waste into the environment, including but not limited
to Claims arising out of any actual or alleged violation of any applicable law or
regulation.
This indemnity is intended to operate as an agreement pursuant to §
107(e) of CERCIA, 42 U.S.C. § 9607(e) and California Health and Safety Code §
25364, to defend, protect, hold harmless and indemnify CITY from all forms of
liability under CERCIA, RCRA, other statutes or common law for any and all
matters_ addressed, and shall be limited to the extent of the CITY's liability. This
provision shall survive the expiration of the Agreement.
2. Additional Indemnification Obligations.
In addition to the indemnification obligations created above, WM shall
indemnify, defend, protect and hold harmless CITY, its elected officials, officers,
employees, volunteers, agents, assigns and any successor or successors to
City's interest from and against all claims, actual damages (including but not
limited to special and consequential damages), natural resources damages,
punitive damages, injuries, costs, response, remediation and removal costs,
losses, demands, debts, liens, liabilities, causes of action, suits, legal or
administrative proceedings, interest, fines, charges, penalties and expenses
(including but not limited to attorney and expert witness fees and costs incurred
in connection with defending against any of the foregoing or in enforcing this
indemnity) of any kind whatsoever (collectively, "Claims") paid, incurred or
45635.01817M785718 5
suffered by, or asserted against, CITY or its elected officials, officers, employees,
volunteers or agents (except for Claims arising out of the negligence or willful
misconduct of the City, its officials, officers, employees, volunteers or agents)
arising from or attributable to WM's operation of the Transfer Station, or WM's
transportation, transfer, processing, storage, or disposal of any solid waste
received at the Transfer Station by WM pursuant to this Agreement, including but
not limited to Claims arising out of any actual or alleged violation of any
applicable law or regulation.
B. Workers' Compensation and Employers' Liability Insurance
WM shall obtain and maintain in full force and effect throughout the entire
term of this Agreement full workers' compensation insurance and Employers'
Liability Insurance with a minimum limit of FIVE MILLION DOLLARS
($5,000,000.00) in accord with the provisions and requirements of the Labor
Code of the State of California. Copies of policies and endorsements that
implement the required coverage shall be filed and maintained with the City Clerk
throughout the term of this Agreement. The policy providing coverage shall be
amended to provide that the insurance shall not be suspended, voided, canceled,
reduced in coverage or in limits except after thirty (30) days (ten (10) days for
non-payment) prior written notice by certified mail, return receipt requested, has
been given to CITY. The policy shall also be amended to waive all rights of
subrogation against the CITY, its officers, board members, employees & trustees
for losses which arise from work performed by the named insured under this
Agreement.
C. Liability Insurance.
WM shall obtain and maintain in full force and effect throughout the entire
term of this Agreement a Broad Form Comprehensive General Liability
(occurrence) policy with a minimum limit of TEN MILLION DOLLARS
($10,000,000.00) aggregate and TWO MILLION DOLLARS ($2,000,000.00) per
occurrence and a Commercial Auto Liability Insurance policy with a minimum
limit of FIVE MILLION DOLLARS ($5,000,000.00). Said insurance shall protect
WM and CITY from any claims for damages for bodily injury, including accidental
death, as well as from any claim for property damage which may arise from
operations performed pursuant to this Agreement. Coverage shall not extend to
any indemnity coverage for the active negligence of the additional insured in any
case where an agreement to indemnify the additional insured would be invalid
under Subdivision (b) of Section 2782 of the Civil Code. General liability
coverage can be provided in the form of an endorsement to the
CONTRACTOR'S insurance, or as a separate owner's policy. The following
language is required to be made a part of all of the insurance policies required by
this Section:
1. "The City of Azusa, its officers, employees, agents, and volunteers are
hereby added as insured's with respect to liability arising out of automobiles
owned, leased, hired or borrowed by or on behalf of WM; and with respect to
liability arising out of work or operations performed by or on behalf of WM
45535.0181715878572.8 6
including materials parts or equipment furnished in connection with such work or
operations".
2. "When this endorsement applies, such insurance as is afforded by the
general liability policy is primary insurance and other insurance shall be excess
to the insurance afforded by this endorsement."
3. "This policy shall act for each insured, as though a separate policy had
been written for each. This, however, will not act to increase the limit of liability of
the insuring company."
4. "Thirty (30) days prior written notice by certified mail, return receipt
requested, shall be given to the City of Azusa in the event of suspension,
cancellation, reduction in coverage or in limits or non -renewal of this policy for
whatever reason. Ten (10) days written notice by certified mail, return receipt
requested shall be given to the City of Azusa in the event of suspension due to
non payment. Such notices shall be sent to the City Manager, City Attorney and
City Clerk."
The insurance required by this Agreement shall be with insurers which are
Best A- rated, or better, and California -Admitted, although WM shall have the
right to request that a lower rated or non -California Admitted insurer be
considered, which CITY may or may not approve. The CITY shall be included as
an additional insured on each of the policies and policy endorsements. The
insurance required by this Agreement is in addition to, and not in lieu or limitation
of, the indemnification provisions above, and shall not act to limit WM's
obligations under the indemnification provisions.
D. Evidence of Insurance Coverage.
WM shall file copies of the executed endorsements evidencing the above
required insurance coverage with the City Clerk. In addition, CITY shall have the
right of inspection of all insurance policies required by this Agreement. WM also
agrees to establish an insurance policy repository and to maintain copies of
insurance policies required pursuant to this Agreement for twenty-five years (25
years) after the end of the term during which collection services are to be
provided pursuant to this Agreement..
E. Self Insurance
To the extent provided by law, all or any part of any required insurance
may be provided under a plan of self-insurance approved by the State of
California.
F. Subcontractors
WNI shall include all subcontractors as insured's under its policies or shall
obtain separate certificates and endorsements for each subcontractor.
G. Modification of Insurance Requirements.
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The insurance requirements provided in this Agreement may be modified
or waived by CITY, in writing, upon the request of WM if the CITY determines
such modification or waiver is in the best interest of CITY considering all relevant
factors, including exposure to CITY.
H. Rights of Subrogation
All required insurance policies shall preclude any underwriter's rights of
recovery or subrogation against CITY with respect to losses which arise from
work performed by WM under this Agreement, with the express intention of the
parties being that the required insurance coverage protects both parties as the
primary coverage for any and all losses covered by the above described
insurance. WM shall ensure that any companies issuing insurance to cover the
requirements contained in this Agreement agree that they shall have no recourse
against CITY for payment or assessments in any form on any policy of insurance
with respect to losses which arise from the work performed by WM under this
_Agreement. The clauses 'Other Insurance Provisions' and 'Insured Duties in the
Event of an Occurrence, Claim or Suit' as it appears in any policy of insurance in
which CITY is named as additional insured shall not apply to CITY.
10, PREVAILING PARTY
The prevailing party in any legal action commenced in relation hereto shall
be entitled, in addition to any damages or other relief granted by the court, to
recover its reasonable costs of prosecuting or defending any such action from
the non -prevailing party including attorney's fees, court and other costs. If the
legal action involves a number of separate claims and the decision of the court is
partly in favor -of one party and partly in favor or the other, then each party shall
pay its own legal costs.
11. TERMINATION; DEFAULT
The failure of WM to comply with the terms and conditions of the
Agreement, and the ordinances and applicable codes of the City or the laws,
rules or regulations of the State of California or the United States of America,
shall constitute a default. In the event of such a default, City shall notify WM, in
writing, of the specific nature of the default. WM shall have thirty (30) days from
the date of notification .to provide a means of curing the default satisfactory to
C ity.
In the event that the default continues longer than thirty (30) days after the
date of notification, City shall have the right to terminate this Agreement by giving
WM thirty (30) days written notice of such termination and termination may result
in the termination of the related entitlements necessary to continue operating.
12. INDEPENDENT STATUS
45635.01817\5878572.8 8
WM is an independent entity and not an officer, agent, servant or
employee of CITY. WM is solely responsible for the acts and omissions of its
officers, agents, employees, contractors and subcontractors, if any. Nothing in
this Agreement shall be construed as creating a partnership or joint venture
between CITY and WM, nor an arrangement for the disposal of hazardous
substances. Neither WM nor its officers, employees, agents, or subcontractors
shall obtain any rights to retirement or any other benefits which accrue to CITY
employees. I
13. PROPERTY DAMAGE
Any physical damage caused by the negligent or willful acts or omissions
of employees of WM to public or private property shall be repaired or replaced by
WM at WM's sole expense.
14. MODIFICATIONS, CHANGES OR AMENDMENTS
This Agreement constitutes the entire agreement between the CITY and I
WM 'and no, alteration or variation of the terms of this Agreement shall be valid
unless made in writing and signed by the Parties hereto.
15. ASSIGNMENT
This Agreement shall not be assigned without the express written consent
of the Parties.
16. JURISDICTION AND VENUE
This Agreement is to be construed under the laws of the State of
California. The Parties agree to the jurisdiction and venue of the appropriate
courts in the County of Los Angeles, State of California.
17. WAIVER
Any failure by CITY at any time to enforce or require the strict keeping and
performance by WM of any of the terms or conditions of this Agreement shall not
constitute a waiver by CITY of any subsequent or other breach of the same or
any other term hereof.
18. BINDING ON SUCCESSORS
WM, its successors in interest and assigns shall be bound by all the
provisions contained in this Agreement, and all of the Parties thereto shall be
liable hereunder.
19. INTERPRETATION
Since the parties or their agents have participated fully in the preparation
of this Agreement, the language of this Agreement shall be construed simply,
according to its fair meaning, and not strictly for or against any party. Any term
45635.01817\5878572.8 9
referencing time, days or period for performance shall be deemed calendar days
and not work days. All references to WM include all personnel, employees,
agents, and subconsultants of WM, except as otherwise specified in this
Agreement. All references to CITY include its elected officials, officers,
employees, agents, and volunteers except as otherwise specified in this
Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or
describe the scope, content, or intent of this Agreement.
20. SEVERABILITY
If any portion of this Agreement is declared invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions shall
continue in full force and effect.
21. SIGNING AUTHORITY
WM warrants that their respective undersigned representatives have been
duly authorized to execute this -Agreement on behalf of WM, and WM hereby
waives any right to assert that this Agreement is void or invalid as a result of an
unauthorized signature by their respective representatives.
22. NOTICES
Notices and payments shall be sent to WM addressed as follows:
Azusa Land Reclamation Inc.
1211 W. Gladstone Avenue
Azusa, CA 91702
Attn: District Manager
With copy to:
Waste Management -Western Group
7025 N. Scottsdale Rd., Suite 200
Scottsdale, AZ 85253
Attn: Group Legal Counsel
Notices shall be sent to the CITY addressed to the following:
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: City Attorney
45635.01817\5878572.8 10
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be executed by their duly authorized officers on the date and year dated
below.
DATED: 14 2011 CITY OF AZUS�A %
B�'d1
y.
ayor
ATT
By:
Approved as to Form:
By: lJ�
City Attorney
DATED: /2 , 2011 AZUSA LAND RECLAMATION
. RECLAMATIONIINC.
�President Nam
Approved as to Forma
By: JEW
Legal Counsel
e n CovK Sr +T�-
AZf/SS C, f2edar -A;K yNG.
45635.01817\5878572.8 11